Court File and Parties

Court of Appeal for Ontario Date: 2023-06-08 Docket: COA-22-CV-0312 & COA-22-CV-0418

Before: Lauwers, Huscroft and Zarnett JJ.A.

Between: Harry Gefen Applicant (Respondent)

And: Henia Gefen, in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen and Harvey Gefen Respondents (Appellants)

Counsel: Benjamin Salsberg and Ingrid Matckars, for the appellant Harvey Gefen Aidan Fishman, for the respondent Harry Gefen Archie Rabinowitz and Holly Cunliffe, for the respondent Shael Eisen in his capacity as Litigation Guardian and Guardian of Property for Henia Gefen Chris Graham, for the Estate of Yehuda Gefen

Heard: June 1, 2023

On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated November 4, 2022.

Reasons for Decision

[1] The history of this case, which we will not recite, is set out at length in several decisions, including the decision of George J.A. at 2023 ONCA 29, who referred to the decisions of Kimmel J. in Gefen Estate v. Gefen, 2019 ONSC 6015 and Saunders v. Gefen, 2019 ONSC 6017, both affirmed, 2022 ONCA 174, 161 O.R. (3d) 267, leave to appeal to S.C.C. refused, [2022] S.C.C.A. No. 129.

[2] The motion judge was sitting as case management judge and, under the authority of r. 77.04 of the Rules of Civil Procedure, she directed that the motion be heard in writing.

[3] A short summary of the motion judge’s conclusions and the orders under appeal is set out at paras. 11-12 of the motion judge’s reasons:

[11] For the reasons set out below, I find that Henia does not have capacity to manage her property or instruct counsel. Given the family dynamics, tension and conflicts, it is not appropriate for Harvey to act on the 2011 POA. As such, Mr. Shael Eisen will be appointed as Litigation Guardian and Guardian of Property. Mr. Moldaver will be removed as Henia's counsel given the finding that she does not have capacity to instruct counsel and Mr. Moldaver has not withdrawn as counsel to date.

[12] A trial of these issues as now requested by Henia's counsel is unnecessary. This is a contested guardianship Application with cross-examinations of the assessors and a complete record available to the Court. At no time was it ever agreed that this matter was to be converted to a trial.

[4] Harvey Gefen appeals and asks this court to set aside the motion judge’s decision on several grounds. Harry Gefen and Shael Eisen oppose. The Estate of Yehuda Gefen supports Harry Gefen and Shael Eisen’s submissions.

[5] A preliminary procedural question is whether this court has jurisdiction over the appeal or whether the orders were interlocutory, such that the appeal is to the Divisional Court under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). This is a perennially vexing question. Although an order appointing a litigation guardian is interlocutory, the weight of the authority suggests that this court has jurisdiction over appeals from the appointment of a guardian of property: see e.g., Roelandt v. Roelandt, 2016 ONCA 858; Public Guardian and Trustee v. Gaumont, 2018 ONCA 731. On the basis of Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), at para. 9, we conclude that this court has jurisdiction over the final order, such that, to the extent that the other orders under appeal are interlocutory, it can address them as well under s. 6(2) of the CJA. No party argued to the contrary.

[6] We now attend to the substance of the appeal. We find that the motion judge committed no extricable legal error or palpable and overriding error in concluding that Henia Gefen lacked capacity to manage property or instruct counsel. As noted by the motion judge, Rita Postoff’s expert opinion that Henia Gefen lacked capacity was firmly rooted in the evidence. She accepted Ms. Postoff’s opinion over the partial opinion to the contrary given by Paul Cappuccio, who opined that Henia Gefen had capacity to manage her own property. His assessment did not discuss her capacity to instruct counsel. The motion judge also reviewed the videotaped cross-examination of Henia Gefen. This assessment of capacity was uniquely the responsibility of the motion judge. We accept her conclusion that the evidence was sufficient, in the form in which she had it, to make the determinations she made.

[7] Given the motion judge’s determination that Henia Gefen is incapable, the related order is irreproachable. The motion judge referred to the applicable test for the appointment of a litigation guardian and guardian of property. She properly appointed a neutral person – Shael Eisen – as litigation guardian and guardian of property. She properly did not give effect to Henia Gefen’s 2011 power of attorney appointing Harvey Gefen on the basis that he had an inherent conflict of interest with his mother, having been found by Kimmel J. to have procured significant assets from her. She rejected Harry Gefen as a “viable option as Guardian of Property for Henia” Gefen on a similar basis. We reject Mr. Salsberg’s submission, for Harvey Gefen, that the motion judge failed to give proper consideration to the fact that Ronald Rutman was appointed the estate trustee during litigation (“ETDL”) of the estate of Henia Gefen’s late husband on January 27, 2015 by Justice Newbould. This simply has no bearing on the issue of whether there was an alternative to the appointment of a guardian of property for Henia Gefen herself within the meaning of s. 22(3) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The ETDL’s function is different, unrelated, and time-limited.

[8] Harvey Gefen submits that a guardian of property can only be appointed on an application, but the motion judge here impermissibly proceeded by motion. We see no reason to accept his assertion that a full application process is either necessary or mandatory. This argument elevates form over substance. A litigation guardian may be appointed on a motion, and here the issues about both appointments were inextricably intertwined. It makes little sense in this kind of case to require separate forms of proceedings to deal with each. The underlying application sought the appointment of a guardian of property, and in that context, the motion judge could appoint a guardian of property on a motion brought within the application. See Berkelhammer v. Berkelhammer Estate, 2012 ONSC 6242 for an instance where a guardian of property was appointed pursuant to s. 22 of the Substitute Decisions Act, on a motion within a larger proceeding commenced by application. Keeping in mind the general instruction in r. 1.04 of the Rules that rules be liberally construed in order to “secure the just, most expeditious and least expensive determination” together with the motion judge’s authority under r. 77 as case management judge, we see no reason to let a procedural nicety prolong the dispute.

[9] The appeal is dismissed, with costs payable by Harvey Gefen to Harry Gefen in the amount of $8,000, to the Estate of Yehuda Gefen in the amount of $4,000, and to Shael Eisen in his capacity as Litigation Guardian and Guardian of Property for Henia Gefen in the amount of $8,000, all amounts all-inclusive.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“B. Zarnett J.A.”